State v. Wasson

OPINION

RUSSELL A. ANDERSON, Justice.

Appellant was arrested and charged with a controlled substance offense after police executed a nighttime, no-knock search warrant at a residence where appellant was staying. Appellant moved to suppress the fruits of the search warrant on the basis that no circumstances existed to justify a no-knock search. The district court denied the motion, and appellant submitted the case to the court on stipulated facts, resulting in conviction. The court of appeals affirmed the conviction. We granted appellant’s petition for review solely on the issue of whether there was a sufficient basis for the unannounced search and now affirm.

Appellant was staying for an indefinite period of time at the home of James Meix-ner in rural Cass County. This particular house had been the object of a search pursuant to warrant in June 1997, three months previous to the October 1997 search at issue herein. In the June search numerous weapons and drugs were found on the premises.

A confidential reliable informant (CRI) visited Meixner on September 25, 1997. The CRI had previously purchased marijuana and methamphetamines from Meix-ner, and on this visit observed drug paraphernalia present. The informant told police that Meixner said someone named “Smiley” might have methamphetamines and possibly would stop by on September 27, 1997.

On September 26, 1997, a sheriffs deputy applied for a search warrant for Meix-ner’s property, cars and Meixner himself. The application was based on the information from the CRI. The deputy also stated in the affidavit that he had personal knowledge that Meixner had two previous convictions for possession of controlled substances, including a conviction earlier that year. The deputy specifically requested a no-knock, nighttime entry.¹ The affidavit stated that the nighttime search was sought because:

Your Affiant believes that entering onto the described property could be [sic] affected by law enforcement officers, if done under the cover of darkness, and therefor allowing for the security of property without endangering law enforcement officers or subjects who may be located within the residence or outbuildings. A[p]rior [sjearch [wjarrant was executed on the 27th of June 1997 and numerous weapons were removed [from] the residence.

The affidavit disclosed the unannounced entry was sought because:

Your Affiant knows that, through experience and training that often persons involved in narcotics trafficking and transactions carry firearms and/or other weapons to protect themselves and to protect their controlled substances. Your Affiant further knows through experience that those involved with controlled substanee[s] often attempt to destroy those substances if they should [fear] substances are in [jeopardy] of being confiscated by law enforcement officers.

The deputy testified at the omnibus hearing that most of this language was taken from other search warrant affidavits, and was commonly used in drug-related search warrant applications.

A district court judge signed the warrant application September 26 and it was executed at 9:30 p.m. on October 3, 1997. When executing the warrant the officers parked about a quarter of a mile from Meixner’s house. Before entering, they observed Meixner and appellant, whom they did not recognize, sitting across from each other at a coffee table, playing what appeared to be a word game. One of the officers tried the front door, and found it unlocked. The officers, in camouflage, helmets and masks, entered with guns drawn, shouting, “police.”

Meixner did not move other than raising his arms above his head. Appellant was startled by the entry, and tossed the dictionary he was holding into the air. He attempted to run out of the room, and did not obey officers’- commands to keep his hands where they could be seen and to stand still. Appellant held his fist clenched, and then appeared to shove the contents of his fist down the front of his pants. Officers testified they thought appellant might be hiding a weapon. The officers eventually subdued him. Officers removed a buck knife from appellant’s belt and two items containing methamphet-amines-an. inhaler and a plastic baggie.

Appellant was arrested and charged with fifth-degree controlled substance crime. See Minn.Stat. § 152.025, subd. 2(1) (1998). He moved to suppress all the evidence obtained during the execution of the warrant, claiming there was no basis for the unannounced search. At the omnibus hearing it was first revealed that the weapons taken in the June search were ordinary hunting rifles, and had been returned to a relative of Meixner.

The district court denied the motion to suppress, finding the possible presence of guns warranted the unannounced entry. Appellant waived his right to a jury trial and submitted the case on stipulated facts. He was found guilty and the court stayed imposition of his sentence on condition that he serve 90 days in the county jail and five years on probation. The court of appeals affirmed, finding in particular that the possible possession of weapons warranted the unannounced entry.

I.

Important purposes are served by the knock and announce requirement, including preventing the unnecessary destruction of property and mistaken entry into the wrong premises, protecting against unnecessary shock and embarrassment, and decreasing the potential for a violent response. See State v. Prudhomme, 287 N.W.2d 386, 389 (Minn.1979). As the United States Supreme Court recently recognized, these values are protected by including in the reasonableness inquiry under the Fourth Amendment an inquiry into the necessity of an unannounced entry. See Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).

Given the constitutional dimension to the method of entry into a residence, evidence should be suppressed when the circumstances do not warrant an unannounced entry. See City of Minneapolis v. Cook, 498 N.W.2d 17, 20 (Minn.1993) (holding that serious violations that subvert the purpose of established warrant procedures will justify suppression). Where, as here, the material facts are not in dispute, we independently determine whether evidence should have been suppressed as a matter of law. See State v. Hardy, 577 N.W.2d 212, 215 (Minn.1998).

We laid out the principles governing an unannounced entry of a dwelling place in State v. Lien, 265 N.W.2d 833, 838-39 (Minn.1978). Relevant to the particular claims appellant makes, we require the police to inform the issuing magistrate of the circumstances that they believe justify the unannounced entry and to obtain specific advance authorization for an unannounced entry. See id. at 838.²

To substantiate the need for a no-knock warrant an officer must establish more than that drugs are involved. See id. The United States Supreme Court recently held that a blanket exception for the announce requirement in all felony drug cases violates the Fourth Amendment. See Richards v. Wisconsin, 520 U.S. 385, 396, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). In that case the Court reviewed a decision from the Wisconsin Supreme Court holding that exigent circumstances justifying a no-knock entry are always present in felony drug cases because each case involves a risk of injury to the police and the potential for the disposal of drugs by the occupants prior to entry. See id. at 390, 117 S.Ct. 1416. In Richards, the Court rejected a blanket rule for all drug cases and required more particularized findings. The Court held that “police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Id. at 394, 117 S.Ct. 1416.

The Court in Richards specifically distinguished the standard for issuance of the warrant itself, probable cause, from the standard for an unannounced entry, which is reasonable suspicion. In describing the reasonable suspicion standard, the Court noted, “[t]his showing is not high, but the police should be required to make it whenever the reasonableness of a no knock entry is challenged.” Id. at 394-95, 117 S.Ct. 1416. In other contexts this court has defined reasonable suspicion as something more than an unarticulated hunch, that the officer must be able to point to something that objectively supports the suspicion at issue. See State v. Johnson, 444 N.W.2d 824, 825-26 (Minn.1989).

We turn to the affidavit in this case. Appellant is correct that Richards makes clear that the admittedly boilerplate language in the search warrant affidavit does not satisfy the requirement for a showing, particular to the search at issue, that announcing would be dangerous or allow the destruction of evidence. However, the search warrant affidavit in this case also pointed to a specific, objective piece of information: that weapons were likely present in the house given that numerous weapons were seized from the exact location just three months previously. This information, in combination with the knowledge that since execution of the June warrant Meixner had been willing to facilitate the sale of drugs at his residence to at least the CRI and perhaps others, is more than an unarticulated hunch and objectively supports a reasonable suspicion that knocking and announcing police presence would be dangerous. See Richards, 520 U.S. at 394, 117 S.Ct. 1416.

Appellant notes that courts in other jurisdictions have held that the mere presence of firearms is insufficient to make a no-knock entry reasonable. Generally speaking, the cases cited are pre-Richards cases. See, e.g., United States v. Bates, 84 F.3d 790, 795 (6th Cir.1996); United States v. Fluker, 543 F.2d 709, 717 (1976) (holding mere fact that occupant possessed a gun did not justify no-knock entry). In several of the cases appellant cites, the court looked for information that would lead to an objectively reasonable belief that the suspect might respond with violence. See, e.g., United States v. Moore, 91 F.3d 96, 98 (10th Cir.1996); United States v. Spinelli, 848 F.2d 26, 29 (2d Cir.1988). An objectively reasonable belief is a higher standard than a reasonable suspicion, however. See United States v. Guebara, 80 F.Supp.2d 1226, 1228 n. 2 (D.Kan.1999). As the Richards court noted, the showing required for a reasonable suspicion is “not high.” 520 U.S. at 394, 117 S.Ct. 1416. In this case, the officer could point to a particular fact about this particular residence — that coupled with ongoing drug activity numerous weapons were found there three months previously — that led him to suspect that officer safety might be jeopardized. We think that is all Richards requires. See United States v. Cooper, 168 F.3d 336, 339 (8th Cir.1999) (post-Richards case upholding no-knock entry where search warrant did not authorize such, house was likely to contain weapons and person with known violent tendency was not present).

Many of the other cases appellant cites are also distinguishable on the basis that the officers did not specifically request authorization for an unannounced entry. See, e.g., United States v. Marts, 986 F.2d 1216, 1218 (8th Cir.1993); People v. Condon, 148 Ill.2d 96, 170 Ill.Dec. 271, 592 N.E.2d 951 (1992). While we need not decide in this case whether to adopt a good faith exception³ to the knock and announce rule, we have stated, in the probable cause context, that where a search is based on the probable cause determination of a magistrate, rather than a police officer, we may “accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant * * *.’ ” State v. Nolting, 312 Minn. 449, 453, 254 N.W.2d 340, 343 (1977) (quoting Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)). See also State v. Walker, 584 N.W.2d 763, 769 (Minn.1998) (securing of holding that the warrant may tip scales in case of doubtful probable cause). Likewise, in the unannounced search context, we may accept evidence of a threat to officer safety of a less persuasive character when the officer presents the request for a no-knoek warrant to a magistrate. In this case the officer followed the instruction we set out in Lien to present to a magistrate the particular circumstances justifying an unannounced entry, and the magistrate approved of that method of entry. See 265 N.W.2d at 839. The officer’s compliance with our direction weighs against excluding the evidence seized.

Finally, in addition to rejecting the appellant’s arguments, we disagree with the thrust of the dissent. Although the dissent claims “it is not necessary to definitively prove danger,” its analysis suggests just the opposite. The dissent complains of an absence of evidence regarding (1) the type of weapons present, (2) whether suspects have violent or aggressive propensities or history, (3) the severity of the prior convictions of the suspects, (4) whether the suspects were “typically” armed, (5) whether the illegal activity was continuing, and (6) whether the illegal activity would amount to merely use or a sale. If adopted, the dissent’s analysis would “mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Wilson, 514 U.S. at 934, 115 S.Ct. 1914. This rigid approach was rejected by the United States Supreme Court in Wilson and is antithetical to the realities of law enforcement investigative work. Id. at 934-36, 115 S.Ct. 1914.

The Court in Richards required only a reasonable suspicion, not an airtight case, that knocking and announcing would be dangerous. Like the Court in Richards, we also reject boilerplate language to support a no-knock warrant. The dissent’s analysis goes far beyond rejecting boilerplate language and, if adopted, would create an unreasonable hurdle for law enforcement officers to safely fulfill their responsibilities.

Accordingly, we hold the officer presented to the magistrate facts that established a reasonable suspicion of a threat to officer safety necessary for an exception to the “knock and announce” requirement of the Fourth Amendment.

II.

One of the governing principles of unannounced entries we set out in Lien is that even if police obtain advance judicial approval for a no-knock entry, officers should make a “threshold reappraisal of the need to execute the warrant in this manner.” Id. at 839. Appellant claims that if police had made a good faith reappraisal of the situation, they would have aborted the planned no-knock entry.

The threshold reappraisal principle derives from State v. Daniels, 294 Minn. 323, 200 N.W.2d 403 (1972), where we noted that officers “do well either to employ less drastic alternatives or, even though granted a no-knock search warrant, to make a threshold reappraisal of the actual threat of the destruction of evidence. Of course, the last word on this important issue has not been written.” 294 Minn, at 336, 200 N.W.2d at 410; see also Lien 265 N.W.2d at 836-37. While we have stated that officers “should” make this reappraisal, we have not announced a hard and fast rule that the reappraisal is required in every case.

We need not write “the last word” today because the officers in this case assessed the need to proceed with an unannounced entry. The district court found the officers in this case made the reappraisal required, a finding of fact that is not clearly erroneous based on the record. See State v. Buchanan, 431 N.W.2d 542, 551-52 (Minn.1988) (holding factual determinations on motion to suppress reversed only if clearly erroneous). We independently determine whether what the officers observed demonstrated that an unannounced entry was improper. See Hardy, 577 N.W.2d at 215.

The officers observed Meixner, the owner of the weapons, in the residence with an unknown person. While the scene of two people playing a word game did not itself appear threatening, nothing the officers observed contradicted their belief that weapons were present, or provided additional information to suggest there was no threat to officer safety. The officers were not required, based on their threshold reappraisal, to abandon the plan for an unannounced entry.

In sum, pursuant to Richards, the state need only show a reasonable suspicion that an announced entry will pose a threat to officer safety. That standard was satisfied here where the officer presented to a magistrate specific information that in addition to.ongoing drug activity numerous weapons were present three months earlier at this particular residence when officers executed a search warrant. The officers properly reappraised the need for an unannounced entry, and based on their observations were not required to abandon the plan for that method of entry. The trial court did not err in refusing to suppress the evidence seized.

1 . The search warrant application form in this case specifically reserved space for the requesting officer to explain the need for nighttime and unannounced searches. Appellant does not claim the affidavit was insufficient because the information regarding weapons was in the section for reasons for a nighttime entry, which he does not challenge, rather than in the section for reasons for an unannounced entry,- which he does challenge.

2 . In Lien we also stated that police may make an unannounced entry without preapproval if necessary for a safe and successful execution of the warrant. See 265 N.W.2d at 838.

3 . See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (exclusionary rule inapplicable to fruits of search warrant lacking probable cause where officers acted in good faith reliance on search warrant issued by neutral and detached magistrate).